At first blush, it sounds great for road safety. The Government makes it sound as though the current system allows only for fifteen-day prohibitions for street racing or stunt driving, and that these will now be replaced with longer prohibitions, between three and thirty six months, after this type of driving behaviour is observed. The problem with this announcement is that it sorely misrepresents the current state of affairs, and it misleads the public about why this action is being taken.
To understand this issue it’s necessary to understand the current system.
The whole basis of the fifteen day prohibition is the word of the officer. And the phone calls are not recorded. They are not preserved. And the adjudicators on the other end apparently do not keep any records pertaining to why they told the officer to issue the prohibition. It just gets issued.
If there was ever an example of a broken system, lacking due process and lacking fairness, transparency, and reviewability, this is it.
But the punishment does not stop there.
Once a driver is issued a fifteen-day prohibition, and their car is impounded, and they are given a ticket for driving without consideration or excessive speeding, the officer is then required to file a Report to the Superintendent, explaining the stunting or street racing allegation. That Report is then directed to another adjudicator, who reviews the contents of the Report and the driver’s driving record. Based on that review, a driving prohibition is then issued to the driver.
All of this occurs again without the driver knowing, without the driver having any participatory rights in the decision-making process, and without the benefit of hearing the driver’s side of the story. It also does not matter if the ticket was disputed by the driver. Guilt or innocence have no bearing on whether the Superintendent decides to prohibit: the word of an officer is God.
It’s a system that is rife for abuse, with the officer’s personal perception and the Superintendent’s broad discretion, used without ever hearing from the driver before the action to prohibit the driver has been undertaken. And the courts have not looked favourably on this process.
For example, in a case involving alleged street racing in the Massey Tunnel, the Court had serious concerns about the fact that an officer’s recounting of hearsay about bad driving was sufficient to found a prohibition. Mr. Wang argued that it was unreasonable for the Superintendent to issue a prohibition based on the allegation. The Court summarizes his argument at paragraph 22:
Mr. Wang submits that Constable Lichtmann’s report includes no direct observations of his driving and that it was unreasonable for the Superintendent to rely on its contents, which alleges no specific act of driving. He further submits that the fact that he was not issued a 15 day driving prohibition on the spot supports an inference that there were insufficient grounds at the time to do so.
The Court considered this argument and wrote:
Constable Lichtmann’s report does nothing more than recount hearsay complaints regarding a group of vehicles being driven irresponsibly. There is no specific information tying any vehicle of any specific description or licence number to any specific act of irresponsible driving. There is no evidence that Mr. Wang committed any infraction of any kind. At most there is a circumstantial case that he was part of a group of motorists about whom unidentified callers made generalized complaints. It is reasonable to infer that the group that Constable Lichtmann ultimately intercepted included the drivers the callers had observed. Constable Lichtmann did not personally observe any objectionable driving however, and the record before the Superintendent shows no evidence that could lead to any specific belief that Mr. Wang had done anything in particular, except that he was associated with the group. No amount of “training” can make evidence out of what is not evidence. The appellant does not assert an alternate set of facts, he simply says the officer acted in the absence of a factual foundation.
On the record the officer did not have reasonable grounds to give Mr. Wang a violation ticket. Even if, having issued the ticket, he was entitled to wait to see if the violation was effectively acknowledged by the lapse of the 30 day time limit to dispute, once it was filed, it should have been clear that specific proof of a violation would be required.
The Constable’s election to pre-empt due process by writing the letter he did to the Superintendent, and the Superintendent’s willingness to act on what was clearly an untenable foundation, is not assisted by the Superintendent’s claim that the officer’s training made the report reliable or that somehow a presumption of “regularity” can be called in aid of a record documenting no evidence that would found a reasonable belief in any specific act of objectionable driving.
And the Court there is correct. This entire process pre-empts due process by writing a letter to the Superintendent and prohibiting people on the basis of allegations that may well be very much in dispute and may well be unfounded.
So how is this new system an improvement?
It’s not. What it actually does is remove the step of the fifteen-day prohibition from the process. Now, instead, the Superintendent will just receive the report of the officer without the need for an automatic 15-day driving ban. If the issue is protecting the public, then it’s a step in the wrong direction. The Superintendent is actually taking away an automatic-on-the-spot driving prohibition issued to people the police portray (in an unrecorded phone call) as high risk drivers.
Representing this as a step toward greater road safety is simply misrepresenting what is happening.
Why is it, then, that the Superintendent is doing away with the automatic driving ban? The real reason will probably not surprise you, but it is important to know. And it is shameful that the Government is trying to cover this up.
I challenged the fifteen-day driving ban in BC Supreme Court on a number of files. Our office has been quietly doing this. The problem is that because it is a decision that is subject to a Statutory Right of Appeal under Section 94 of the Motor Vehicle Act, the Court has only two options on a review: cancel the prohibition or keep the prohibition. And when the Court reviews these driving prohibitions, they are required to look at the record that was before the adjudicator when they made their decision.
But because the record consists of an unrecorded telephone call with an adjudicator who makes no notes, is not identified in any way, and because it is based on an unsworn oral report from an officer, with no opportunity to make submissions or address the decision-maker, the Court has nothing to review. There really is not hearing. There is no reasoning process. There is no defensible decision that the Court can uphold on an appeal.
The only reason that the fifteen-day prohibition system is disappearing is because it is an indefensible process that has all the hallmarks of unfairness. It is the closest and truest example of a star chamber our legal system has ever seen. Heck, once I dialed the “police-only” number to try to find out what was being said to an officer in a client’s case, and I was promptly hung up on. I was then warned not to dial that number again.
No lawyers allowed. No justice allowed.
Worse still, a person is not permitted after-the-fact to write the Superintendent to challenge the prohibition. There is no review process at the time, or even after the fact.
That just emphasizes the fact that the fifteen day prohibition system is also probably constitutionally invalid. We know from the decision of the Supreme Court of Canada in Goodwin that an administrative penalty by way of a prohibition is really only constitutional if it can be reviewed in some fashion. There being no record and no reasons for the Court to review, and no opportunity to make submissions, even after-the-fact, the system prevents review of the decision and violates the constitution under Section 8.
Worse still, is the violation of the Charter values of the right to be presumed innocent. The Alberta Court of Appeal recently ruled regarding the indefinite license suspension program created there that it violates the right to be presumed innocent by punishing people on the basis of an allegation that has not yet been proven. That’s exactly what happens here, but to a much greater degree.
The Government is selling a big lie. This is not an improvement to road safety, designed to allow the Superintendent to identify high risk drivers. The Government is running scared because it knows that a challenge is being brought to the entire system that allows them to do this. Our office has filed a challenge to these prohibitions because we recognize their constitutional infirmity.
The system isn’t fixed either by this change. The Government still intends to punish drivers on the basis of an unproven allegation that they have committed a driving offence. Administrative scheme or not, Section 11 Charter rights are engaged when a person is charged with an offence, and the issuance of these prohibitions hinges entirely on the officer charging an offence. We will be filing a challenge to the new process, and continuing to pursue our outstanding challenges to the old regime.
Do not believe what the Government is telling you. The Government is misrepresenting the situation to cover up the fact that they have been caught doing something very wrong. They are trying to get ahead of the story. But we know the truth.